Improper To Detain Foreign National Despite Clear Judicial Order of Bail With Conditions: Delhi HC

While considering the order of the ASJ granting bail with conditions as ‘apposite’, a single-judge Bench of Justice Anish Dayal observed in the matter, “Despite that the petitioner was not released on account of the intransigent stand taken by the FRRO in not granting him a visa or permit and issuing the impugned order. This denial was in the teeth of a judicial order of Ld. ASJ, which is not merited considering there was no challenge to the said order by the State. The petitioner once being enlarged on bail cannot be detained without due process of law. The fact that he is facing trial for offences under the Excise Act and the Foreigners Act cannot be held against him, considering he still is to be proved guilty post trial. Right now, is the issue of his freedom”.

The Court also highlighted that the petitioner on being enlarged on bail, would still be in constructive custody of the Court.

Advocate Kanhaiya Singhal appeared for the petitioner, and Advocate Rupali Bandopadhya, ASC appeared for the respondent.

In the present factual matrix, the petitioner, a Nigerian national came to India in November 2014 and got married to Rinku Tripathi in December 2015. It was alleged, that the Police on patrolling found some suspicious people, drinking liquor and creating a nuisance at the petitioner’s African Kitchen.

Subsequently, on checking allegedly found sealed beer bottles. Resultantly, an FIR was registered under Sections 33/38/58 of the Delhi Excise Act, 2009 and Section 14 of the Foreigners Act, 1946. Pursuant to this he was even arrested.

Therefore, in the chain of events, the petitioner contended that despite the ASJ, West District, Tis Hazari Courts’ order dated April 25, 2021, granting bail subject to furnishing a personal bond and surety bond of Rs. 1 Lac, the FRRO restricted him to move out of Sewa Sadan, Lampur, Narela, Delhi until his travel arrangements were made.

He further submitted that he has already furnished the personal bond of Rs 1 Lacs and has not yet been released.

Therefore, the bench after considering a catena of judgments, was of the opinion that the impugned order was untenable on two grounds –

- that no opportunity was ever given to the petitioner to show cause or even a possibility of a hearing/or representation; and

-that other provisions of the Foreigners Act were not considered i.e. order could have been passed under any provision of section 3(2) of the Foreigners Act.

“In any event what must be clarified is that a Court or Magistrates or a Sessions Court cannot as part of enlarging foreign national on bail can also direct the said person to be sent to a detention centre. The Court is not competent to pass such a direction when granting bail as has been conclusively held in various decisions. Detention centres are not for judicial custody but a place where a foreign national is detained on an executive order and is the prerogative of the competent authority under the Foreigners Act”, the judgment read.

The Court, however, questioned why the FRRO did not consider other possibilities under Sections 3(2)(a) to (f) of the Foreigners Act, 1946 i.e. requiring him to be at a particular place (not necessarily a detention centre), imposing restrictions on his movements (like restricting him to an area), regulating his conduct and association with persons; reporting requirements to an authority.

“There is a vast menu of options available for the FRRO to apply, which may be more in consonance with rights under Article 21, than a summary, plain vanilla order of continuing in the detention centre. Also, there is no reason, as has been observed by the Hon’ble Supreme Court, to not consider grant of a special visa/stay permit to the petitioner, which recognizes that he is an undertrial of an overstay offence and has to continue in this country for the purpose of trial or otherwise, in case that is not required, choose to deport him”, the single-judge bench further observed.

The bench further noted that “The petitioner has already spent 2 years in confinement in detention centre when the offences that he is charged with under the Excise Act trigger sentence of about 6 months and maximum may extend to 3 years. Even as regards the Foreigners Act offence, he may at the maximum be sentenced for 5 years, of which he has now already been in de facto custody for 2 years”.

Therefore, while directing the authorities to release the petitioner from detention, the bench directed the FRRO and any other competent authority of the Union of India to consider his application for visa for an appropriate order under the Foreigners Act, considering that the petitioner now had a valid passport (having been extended by the Nigerian Embassy).

Cause Title: Emechere Maduabuchkwu v. State Nct Of Delhi & Anr.

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